Until President Obama chooses a successor to Justice John Paul Stevens, I'm going to try to write a diary per day on the possible successors to Justice Stevens.
Today, I'm starting with the "presumptive" frontrunner, Elena Kagan.
At 49 years of age, Elena Kagan is the presumptive frontrunner for any supreme court nomination, just on the basis of being President Obama's Solicitor General.
Some background history on Elena Kagna:
Kagan was a law clerk for Judge Abner Mikva of the U.S. Court of Appeals for the District of Columbia Circuit and for Justice Thurgood Marshall of the U.S. Supreme Court. She later entered private practice as an associate at the Washington, D.C., law firm of Williams & Connolly.
Now I highlight this for good measure. Both Abner Mikva and Thurgood Marshall are very highly respected when it comes to the progressive community, the fact that Kagan clerked for one should give people hope. The fact that she worked for both of them should get people ecstatic.
I'll admit as far as judicial history, we don't know much about General Kagan. We know that she refused to have the military on campus due to don't ask, don't tell be in effect, when she was Dean at Harvard.
Though she's never judged or argued a single case a trial. And what limited information we have is based only on her record as Solicitor General.
Civil Libertarians point out that at her confirmation hearing she stated that she would apply battlefield law to any detainees picked off, even in countries such as the Phillipines. These individuals point out that she stated it would be okay to indefinitely detain these individuals until that happens.
I'll let Glenn Greenwald argue that: Glenn Greenwald and Elena Kagan
The person who many believe is the leading candidate to replace Stevens -- Obama's Solicitor General Elena Kagan -- has a record that is almost as bad as Sunstein's when it comes to executive power abuses, civil liberties, and "War on Terror" radicalism. Unlike the Sotomayor-for-Souter substitution, which essentially maintained the Court's balance, replacing Stevens with the likes of Cass Sunstein or Elena Kagan would move the Court dramatically to the Right, especially in the areas of executive power and civil liberties, where a fragile 5-4 majority has provided at least some minimal safeguards over the last decade. Whatever else one might want to say about Cass Sunstein -- or, for that matter, Elena Kagan -- it is simply false to claim that they would fit within the so-called "liberal" wing of the Court on matters of executive power and civil liberties. The replacement of John Paul Stevens could have a very radical impact on the Supreme Court, and it's certainly not too early to begin combating pernicious myths about the leading candidates.
In that paragraph, Glenn highlights only confirmation hearings, and cases that Elena Kagan has argued AS SOLICITOR GENERAL. What Glenn doesn't note is the following information on the job of a Solicitor General:
The Solicitor General's office argues on behalf of the government in virtually every case in which the United States is a party, and also argues in most of the cases in which the government has filed an amicus brief. In the federal courts of appeals, the Office of the Solicitor General reviews cases decided against the United States and determines whether the government will seek review in the Supreme Court. The Solicitor General's office also reviews cases decided against the United States in the federal district courts and approves every case in which the government files an appeal.
Her JOB is to argue the Government's position. She's doing nothing more than to defend the Federal Government in every single case and articulating their positions. It is EXTREMELY UNFAIR to judge her on those opinions. To judge her for her actions here would be the same as judging Ted Olsen for defending DOMA when he was Solicitor General in the Bush Administration. I'm fairly certain Ted Olsen wouldn't advocate the same position outside of government.
Though it is true, we'd be nominating a virtual unknown to the Supreme Court. But as Lawrence O'Donnell said on Countdown last night, that all progressives for the last 20 years or so have had to bottle up their opinions if they wanted to be seen to the Supreme Court. In essence, Obama has to find the "liberal within the liberal". That MAY be Elena Kagan.